How to respond to Motion to Set Aside Order of Dismissal

Asked Mar 24, 2011, 02:42 PM
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10 Answers

As a Defendant in a Kentucky collections case, I responded to the Complaint and filed a Motion to Strike the Affidavit attached to the Complaint. I won (probably because counsel for the credit card company neither filed a response nor appeared at the hearing). Immediately thereafter, I filed a Motion to Dismiss on the grounds that Plaintiff failed to state a cause of action upon which relief can be granted (because their affidavit was stricken). Once again, they neither replied nor appeared. The judge (reluctantly) entered the Order of Dismissal. Now Plaintiff if filing a Motion to Set Aside Order of Dismissal stating that they didn't receive the Motion to Dismiss. They included a letter they sent to the clerk's office requesting a copy of my motion to back up their story that they didn't receive it before the hearing. This is a large firm that does collection lawsuits hoping to get default judgments. They handle thousands of collection cases. I'm sure they got the Motion. I can't prove it. Do you have any suggestions?

If you are able to respond (I am not familiar with Kentucky law) you would state the date you did the mailing, the address you used, where you mailed it. In NY (and I know this isn't much help to you) if it is a witnessed mailing and it does NOT come back it is assumed delivered.

I did not send return receipt requested. In KY it is only necessary to a certificate of mailing where you certify that you mailed on such and such a date to so and so at such and such address, which I did. I know the judge will set aside the dismissal, but I want to give it my (and everyone else's) best shot!

... They included a letter they sent to the clerk's office requesting a copy of my motion to back up their story that they didn't receive it before the hearing. ...

This letter was supposedly mailed before the hearing?

If so, that would tend to prove that they didn't have notice of the motion in time to oppose it. On the other hand, what would have prompted them to write such a letter, if they didn't know anything about the motion?

They sent the letter to the Clerk after they received the Order of Dismissal from the Court. They allegedly didn't know about the motion until they received the Order. The hearing was on 2/7/11. The Order was entered the same day. Allowing for mailing time and everything, I SUPPOSE they could have gotten their copy of the Order by 2/10/11, which is the date of their letter to the Clerk requesting my Motion to Dismiss. I didn't receive my copy that fast and I live in the same town as the Court. Opposing counsel is in Louisville. However, technically speaking, it all tends to verify their claim that they didn't receive the Motion. I just KNOW that they really did and they lost it, misplaced, misfiled it or whatever. Unfortunately, it doesn't do any good to just know something. I should have sent it out return receipt requested. They received all the other documents that I sent, though.

I did not send return receipt requested. In KY it is only necessary to a certificate of mailing where you certify that you mailed on such and such a date to so and so at such and such address, which I did. I know the judge will set aside the dismissal, but I want to give it my (and everyone else's) best shot!

Yep. I'm working on that right now, hence these questions. However, I'm having trouble coming up with a valid reason for the judge to deny their motion. Saying they didn't get my motion is pretty much iron clad for them. Got any ideas?

Unfortunately, I agree with you. I think "in the interest of justice" their Motion will be granted unless you can come up with some iron clad "rebuttal." Without a receipt, I don't think you have one. Question is how much time and effort you want to put into papers which you know will lose. You might be better to just let their Motion be granted, have the matter rescheduled and heard.

Yeah, that's what I figured. I've worked in the legal system for many years and ought to know better. I'll just file a response so that something's in the file. I'll at least make them work for it. Thank you for your help.

JudyKayTee: (or anyone else). As I mentioned in the beginning, a filed a Motion to Strike the affidavit attached to their complaint. The affidavit was their entire case. In their Motion to Set Aside Order of Dismissal, they added that the striking of the affidavit does not preclude them from prosecuting the case and attached credit card statements as more proof. Should I attack that? Since the Affidavit was stricken leaving them no case, can they just add new evidence now? I know I sound like I'm grasping at straws - I am. I don't mind losing. I just want to make sure they are forced to do everything by the book.

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